New Mexico Statutes

N.M. Stat. § 33-2-46 (2026)

Inmate-release program; escape.

✓ current as of May 2026

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    Any prisoner whose limits of confinement have been extended, or who has been
granted a visitation privilege under the inmate-release program, who willfully fails to
return to the designated place of confinement within the time prescribed, with the intent
not to return, is guilty of an escape.

    Whoever is convicted of an escape under the provisions of this section is guilty of a
third degree felony and shall be sentenced pursuant to the provisions of Section 31-18-
15 NMSA 1978.

History: 1953 Comp., § 42-1-81, enacted by Laws 1969, ch. 166, § 4; 1975, ch. 210, §
1; 1980, ch. 22, § 1.

                                      ANNOTATIONS

Willfulness. — Willfulness is an essential element of the crime of escape from the
inmate-release program, and the term means a conscious, purposeful failure to return
within the time fixed as distinguished from an involuntary failure to return. State v.
Rosaire, 1996-NMCA-115, 123 N.M. 250, 939 P.2d 597, aff'd, 1997-NMSC-034, 123
N.M. 701, 945 P.2d 66.

Burden of proof. — A defendant may be guilty under this section if he or she intends
not to return at the time fixed, but the state must prove beyond a reasonable doubt that
the failure to return at the time fixed is not only purposeful but also without justification
or excuse. State v. Rosaire, 1997-NMSC-034, 123 N.M. 701, 945 P.2d 66.

Crime of specific intent. — The crime described by this section, escape from an
inmate-release program, is a specific intent crime. State v. Tarango, 1987-NMCA-027,
105 N.M. 592, 734 P.2d 1275, cert. denied 105 N.M. 521, 734 P.2d 761, overruled on
other grounds by Zurla v. State, 1990-NMSC-011, 109 N.M. 640, 789 P.2d 588.

Jury instructions. — Jury instruction based on UJI 14-2228 was defective because it
did not contain the element of "willfulness" as required by this section. State v. Rosaire,
1997-NMSC-034, 123 N.M. 701, 945 P.2d 66 (decided under prior law).

Habitual offender enhancement of an escape conviction does not constitute double
jeopardy. State v. Najar, 1994-NMCA-098, 118 N.M. 230, 880 P.2d 327, cert. denied,
118 N.M. 90, 879 P.2d 91.

Notes of Decisions

Cited in 12 cases (1 in the last 5 years), 1987–2023 · leading case: State v. Rosaire, 945 P.2d 66 (N.M. 1997).

Sort: Relevance Newest Treatment

State v. Rosaire, 945 P.2d 66 (N.M. 1997). · cites it 28× “On appeal to this Court, the State argues that the trial court correctly instructed the jury and that the Court of Appeals’ opinion misconstrued Section 33-2-46.”

State v. Rosaire, 939 P.2d 597 (N.M. Ct. App. 1996). · cites it 14× “Defendant appeals his conviction of escape from the state penitentiary inmate-release program, contrary to NMSA 1978, Section 33-2-46 (Repl.Pamp.1990). He raises six issues on appeal: (1) whether the trial court erred in instructing the jury as to the charge of escape from the…”

State v. Grubb, 2020 NMCA 003 (N.M. Ct. App. 2019). · cites it 10× “{5} Escape from an inmate-release program is a crime established in NMSA 1978, Section 33-2-46 (1980): “Any prisoner whose limits of confinement have been extended, or who have been granted a visitation privilege under the inmate-release program, who willfully fails to return to…”

State v. Elliott, 37 P.3d 107 (N.M. Ct. App. 2001). · cites it 4× “") (emphasis *113 added), with § 31-3-9(A) ("Any person released pending trial or appeal in any criminal action who willfully fails to appear before any court or judicial officer as required is guilty of a fourth degree felony, if he was released in connection with a felony…”

State v. Tarango, 734 P.2d 1275 (N.M. Ct. App. 1987). · cites it 4× “Defendant appeals his conviction for escape from an inmate-release program under NMSA 1978, Section 33-2-46 (Repl. Pamp.1983). Following a trial by jury, defendant was sentenced to three years imprisonment.”

State v. Coble, 536 P.3d 519 (N.M. Ct. App. 2023). · cites it 4× “” NMSA 1978, § 33-2-46 (1980) (emphasis added); see also State v.”

State v. Guillen, 32 P.3d 812 (N.M. Ct. App. 2001). · cites it 2× “We disagree that Defendant was in constructive custody.”

State v. Quintin C., 2019 NMCA 069 (N.M. Ct. App. 2019). · cites it 2× “2d 597 (“We interpret ‘willfully,’ as used in [NMSA 1978,] Section 33-2-46 [(1980)], to mean a conscious, purposeful failure to return within the time fixed as distinguished from an involuntary failure to return.”

State v. Najar, 880 P.2d 327 (N.M. Ct. App. 1994). · cites it 5× “Defendant was convicted of escape from an inmate-release program under NMSA 1978, Section 33-2-46 (Repl.Pamp.1990) and was sentenced as a habitual offender under NMSA 1978, Section 31-18-17 (Repl.”

United States v. Adkins, 196 F.3d 1112 (10th Cir. 1999). “21-3810,” which defines aggravated escape as either a level 8 nonperson felony or level 6 person felony); N.M. Stat. Ann. § 33-2-46 (Michie 1998) (“Any prisoner whose limits of confinement have been extended, or who has been granted a visitation privilege under the…”

State v. Fellhauer, 943 P.2d 123 (N.M. Ct. App. 1997). “1994), and § 33-2-46 (escape from inmate release program) (Repl.”

State v. Hill, 877 P.2d 1110 (N.M. Ct. App. 1994). · cites it 2× “See NMSA 1978, § 33-2-46 (Repl.Pamp.1990). Although we agree that the legislature intended to impose different punishments under Sections 30-22-9 (escape from penitentiary) and 33-2-46 (escape from correctional department inmate-release program), we do not believe that in…”

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